Barnes v. Omnicell

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 24-cv-00538-PAB-CYC
LARRY L. BARNES,
Plaintiff,
v.
OMNICELL,
Defendant.
ORDER
This matter comes before the Court on the Recommendation of United States
Magistrate Judge [Docket No. 36]. The magistrate judge recommends that the Court
grant defendant’s motion for judgment on the pleadings. Id. at 14; Docket No. 19.
Plaintiff Larry Barnes filed an objection to the recommendation on July 19, 2024.
Docket No. 37. On August 2, 2024, defendant Omnicell filed a response. Docket No.
38. Mr. Barnes filed a reply on August 16, 2024. Docket No. 39.
I. BACKGROUND
Mr. Barnes, proceeding pro se, filed suit in Barnes v. Omnicell, No. 21-cv-01702-
PAB-MEH (“Barnes I”), on June 22, 2021. Barnes I, Docket No. 1. 1 Mr. Barnes
asserted claims to recover “back pay for the unpaid overtime for the last three years and
liquidated damages.” Id. at 5. The complaint in Barnes I did not specifically identify the
1 The Court will refer to filings in Barnes v. Omnicell, No. 21-cv-01702-PAB-MEH, by
their docket number and by indicating that the document was filed in Barnes I, e.g.
Barnes I, Docket No. 1. The Court will refer to filings in this case by its docket number
without further description, e.g. Docket No. 1.
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legal basis for Mr. Barnes’s claims, but the complaint referenced both federal and
Colorado regulations. See id. In the “Jurisdiction” section of the complaint, Mr. Barnes
asserted that the Court had diversity jurisdiction over his claims, identified that he is a
citizen of Colorado, and identified that Omnicell is a California citizen. Id. at 3.
On September 16, 2021, the Court entered the first scheduling order in Barnes I.
Barnes I, Docket No. 17. The order identifies that Mr. Barnes has two claims, a claim
under the Fair Labor Standards Act of 1938 (“FLSA”), 44 U.S.C. §1507, et seq., and a
claim under the Colorado Wage Act (“CWA”), Colo. Rev. Stat. § 8-1-101 et seq. Id. at
2. The order states that the Court has federal question jurisdiction over Mr. Barnes’s
FLSA claim and supplemental jurisdiction over Mr. Barnes’s CWA claim. Id. The final
pretrial order states
Jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1331, which grants
original jurisdiction to the federal District Court in actions arising under federal
wage and hour laws. . . . 28 U.S.C. § 1367 is the basis for this Court’s
supplemental jurisdiction over Plaintiff’s state law claims.
Docket No. 64 at 2.
The parties filed cross motions for summary judgment in Barnes I. Barnes I,
Docket No. 43; Barnes I, Docket No. 45. On February 22, 2023, Magistrate Judge
Michael Hegarty recommended that the Court grant summary judgment for Omnicell on
Mr. Barnes’s FLSA claim and that the Court decline to exercise supplemental
jurisdiction over Mr. Barnes’s remaining state law claim. Barnes I, Docket No. 57 at 17–
18. On September 25, 2023, the Court adopted Judge Hegarty’s recommendation.
Barnes I, Docket No. 68 at 25. The order stated that “the Court will accept Judge
Hegarty’s recommendation to decline to exercise jurisdiction over Mr. Barnes’ state law
claims, which Mr. Barnes did not object to.” Id.
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Mr. Barnes appealed the Court’s order dismissing his FLSA claim. Barnes I,
Docket No. 70. On May 28, 2024, the Tenth Circuit affirmed the Court’s order
dismissing Mr. Barnes’s FLSA claim. Barnes v. Omnicell, 2024 WL 2744761, at *7
(10th Cir. May 28, 2024). Mr. Barnes did not appeal the Court’s decision not to exercise
supplemental jurisdiction over his CWA claim and the Tenth Circuit did not address the
jurisdictional basis for Mr. Barnes’s claims in federal court. See id. at *1–7.
On December 22, 2023, Mr. Barnes refiled all his claims in the District Court of
Jefferson County, Colorado. Docket No. 4 at 1. Mr. Barnes’s complaint again fails to
identify the legal basis for his claims. See id. Instead, the complaint recounts the
proceedings in Barnes I, states that the “cause of action [is] wage theft,” and states that
the Jefferson County District Court has jurisdiction under both Colorado and federal law.
See id. at 2–5. On February 26, 2024, Omnicell removed this case to federal court.
Docket No. 1.
On March 26, 2024, Omnicell filed its motion for judgment on the pleadings.
Docket No. 19. In the motion, Omnicell argues that the doctrine of claim preclusion bars
Mr. Barnes’s claims. Id. at 5. First, Omnicell asserts that, to the extent that Mr. Barnes
brings a claim under the FLSA, the claim is identical to the claim the Court ruled on in
Barnes I. Id. Second, Omnicell maintains that, although the Court’s order on the cross-
summary judgment motions in Barnes I dismissed Mr. Barnes’s state law claim without
prejudice, and that dismissals without prejudice generally do not have preclusive effect
under the doctrine of claim preclusion, Mr. Barnes’s state law claim falls within an
exception. Id. at 6–12. Under this exception, when a plaintiff brings claims over which
the court has an alternative basis of jurisdiction, the plaintiff must assert both
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jurisdictional bases, i.e. federal question jurisdiction and diversity jurisdiction. Id. at 7–8.
If a plaintiff fails to assert diversity jurisdiction when diversity jurisdiction exists and the
court dismisses his state law claim without prejudice because the court declines to
exercise supplemental jurisdiction over his claim, the dismissal has the effect of a final
judgment on the state law claim and precludes him from relitigating the claim in federal
court. Id. at 7–11 (citing Shaver v. F.W. Woolworth Co., 840 F.2d 1361, 1365 (7th Cir.
1988); Kale v. Combined Ins. Co. of Am., 924 F.2d 1161, 1163 (1st Cir. 1991).
Omnicell acknowledges that Mr. Barnes claimed diversity jurisdiction in his Barnes I
complaint and that the Court, in fact, had diversity jurisdiction over Mr. Barnes’s CWA
claim. Id. at 9–10. However, Omnicell argues that, because Mr. Barnes did not object
to Judge Hegarty’s recommendation not to exercise supplemental jurisdiction over his
CWA claim and did not appeal that portion of the Court’s order dismissing his claim
without prejudice, Mr. Barnes’s CWA claim falls within the exception whereby the
Court’s dismissal had the effect of being a final judgment on the merits. Id. As such,
Omnicell argues that the doctrine of claim preclusion bars all of Mr. Barnes’s claims and
that they should be dismissed. Id. at 7–11. On April 9, 2024, Mr. Barnes responded,
Docket No. 24, and Omnicell replied on March 11, 2024. Docket No. 28.
On July 5, 2024, Chief Magistrate Judge Hegarty issued a recommendation that
the Court grant Omnicell’s motion for judgment on the pleadings. Docket No. 36. First,
Judge Hegarty considered whether the doctrine of claim preclusion barred Mr. Barnes’s
claims. See id. at 7. As Judge Hegarty noted, claim preclusion “prevents a party from
litigating a legal claim that was or could have been the subject of a previously issued
final judgment.” Id. (alterations omitted) (quoting MACTEC, Inc. v. Gorelick, 427 F.3d
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821, 831 (10th Cir. 2005)). “Claim preclusion acts to bar a plaintiff’s claims when three
elements are satisfied: ‘(1) a final judgment on the merits in an earlier action; (2) identity
of parties or privies in the two suits; and (3) identity of the cause of action in both suits.’”
Id. (quoting Markley v. U.S. Bank Nat’l Ass’n, No. 23-cv-01422-PAB-SBP, 2024 WL
1281520, at *5 (D. Colo. Mar. 26, 2024)). Judge Hegarty concluded that “all three
elements of claim preclusion are met as to any claim asserted under the FLSA.” Id.
Judge Hegarty determined that final judgment was entered in Barnes I, that the parties
are identical to the parties in Barnes I, and that, not only “does Plaintiff’s FLSA claim in
this case arise from the same employment relationship, wage dispute with Defendant,
and time frame as his FLSA claim in Barnes I, but Plaintiff’s claim in this case is even
based on identical factual allegations.” Id. at 7–8 (citing Barnes I, Docket No. 1; Docket
No. 4). As such, Judge Hegarty found that the doctrine of claim preclusion bars Mr.
Barnes’s FLSA claim and that the Court should grant that portion of Omnicell’s motion
seeking to dismiss the FLSA claim. Id. at 8.
Judge Hegarty, however, rejected Omnicell’s argument that the Court’s dismissal
of his state law claim without prejudice precludes Mr. Barnes from pursuing his CWA
claim in this case. Id. at 8–11. Judge Hegarty found that, unlike in cases where a
plaintiff fails to plead diversity jurisdiction when he had the opportunity, Mr. Barnes
specifically alleged diversity jurisdiction in Barnes I. Id. at 9–10 (“I disagree with
Defendant’s first claim, that Plaintiff failed to assert diversity jurisdiction in Barnes I. As
detailed above, in Barnes I, Plaintiff pleaded diversity jurisdiction. Defendant admitted
that diversity jurisdiction existed. Factually, diversity jurisdiction did exist. Plaintiff
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repeated the assertion of diversity jurisdiction in his Motion for Summary Judgment, and
Defendant again admitted it in its Response.”).
Nevertheless, Judge Hegarty found that Mr. Barnes’s state law claim is
precluded under the doctrine of claim splitting. Id. at 11–12. Judge Hegarty stated that,
“[c]losely related to the doctrine of res judicata, the rule against claim splitting also
requires a plaintiff to assert all of his causes of action arising from a common set of
facts in one lawsuit.” Id. at 11 (citing Katz v. Gerardi, 655 F.3d 1212, 1217 (10th Cir.
2011); Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000)). The recommendation
states
In the Tenth Circuit, the test for impermissible claim splitting “is not whether there
is finality of judgment, but whether the first suit, assuming it were final, would
preclude the second suit.” [Katz, 655 F.3d at 1218] (emphasis added); see also
id. at 19 (“When we assess whether duplicative claims have been asserted, we
assume the finality of the first suit for the purposes of the analysis.”). Regardless
of whether Judge Brimmer’s dismissal of Plaintiff’s state law claims without
prejudice in Barnes I has preclusive effect under Shaver et al., assuming it is a
final judgment of those claims, Plaintiff’s state law claims in Barnes II would be
precluded under the res judicata analysis discussed above. Thus, the current
lawsuit constitutes improper claim splitting. Because Plaintiff has already filed a
lawsuit over unpaid wages – suing the same party, asserting the same rights,
seeking the same relief, founded upon the same facts – he was required to bring
all theories pertinent thereto in one case. Accordingly, I recommend Defendant’s
Motion be granted as to any state law claims asserted in this case[.]
Id. at 12.
On July 19, 2024, Mr. Barnes objected to Judge Hegarty’s recommendation.
Docket No. 37. On August 2, 2024, Omnicell responded, Docket No. 38, and Mr.
Barnes replied on August 16, 2024. Docket No. 39.
II. LEGAL STANDARD
A court reviews a motion for judgment on the pleadings under Federal Rule of
Civil Procedure 12(c) much as it does a motion to dismiss pursuant to Rule 12(b)(6).
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See Adams v. Jones, 577 F. App’x 778, 781–82 (10th Cir. 2014) (unpublished) (“We
review a district court’s grant of a motion for judgment on the pleadings de novo, using
the same standard that applies to a Rule 12(b)(6) motion.”) (quoting Park Univ. Enters.,
Inc. v. Am. Cas. Co. of Reading, PA, 442 F.3d 1239, 1244 (10th Cir. 2006), abrogated
on other grounds by Magnus, Inc. v. Diamond St. Ins. Co., 545 F. App’x 750, 753 (10th
Cir. 2013) (unpublished)). The court must “accept all facts pleaded by the non-moving
party as true and grant all reasonable inferences from the pleadings in favor of the
same.” Id. at 782. To prevail, the moving party must show that “no material issue of
fact remains to be resolved and the party is entitled to judgment as a matter of law.”
United States v. Any & All Radio Station Transmission Equip., 207 F.3d 458, 462 (8th
Cir. 2000); 5C Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure
§ 1367 (3d ed.) (a “motion for a judgment on the pleadings only has utility when all
material allegations of fact are admitted or not controverted in the pleadings and only
questions of law remain to be decided by the district court”); see also Park Univ.
Enters., 442 F.3d at 1244 (“Judgment on the pleadings should not be granted unless
the moving party has clearly established that no material issue of fact remains to be
resolved and the party is entitled to judgment as a matter of law.” (quotation marks and
citation omitted)). A party may raise arguments that could be made in a motion under
Rule 12(b)(6) in a motion under Rule 12(c). Fed. R. Civ. P. 12(h)(2).
To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege
enough factual matter that, taken as true, makes the plaintiff’s “claim to relief . . .
plausible on its face.” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “The ‘plausibility’ standard
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requires that relief must plausibly follow from the facts alleged, not that the facts
themselves be plausible.” RE/MAX, LLC. v. Quicken Loans Inc., 295 F. Supp. 3d 1163,
1168 (D. Colo. 2018) (citing Bryson v. Gonzalez, 534 F.3d 1282, 1286 (10th Cir. 2008)).
“[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged – but it has not shown – that the
pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal
quotation marks and alteration marks omitted); see also Khalik, 671 F.3d at 1190 (“A
plaintiff must nudge [his] claims across the line from conceivable to plausible in order to
survive a motion to dismiss.” (quoting Twombly, 550 U.S. at 570)). Thus, even though
modern rules of pleading are somewhat forgiving, “a complaint still must contain either
direct or inferential allegations respecting all the material elements necessary to sustain
a recovery under some viable legal theory.” Bryson, 534 F.3d at 1286 (alterations
omitted).
The court will “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). An objection is proper if it
is specific enough to enable the Court “to focus attention on those issues – factual and
legal – that are at the heart of the parties’ dispute.” United States v. 2121 East 30th
Street, 73 F.3d 1057, 1059 (10th Cir. 1996). In light of plaintiff’s pro se status, the Court
construes his filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991).
III. ANALYSIS
Mr. Barnes makes six objections to Judge Hegarty’s recommendation. See
Docket No. 37 at 1–15.
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1. 	First Objection
Mr. Barnes objects to that portion of the recommendation in which Judge Hegarty
states “the Parties’ briefing on their cross motions for summary judgment further
muddied the waters as to the basis of the Court’s jurisdiction.” Id. at 1 (quoting Docket
No. 36 at 2 (referring to the Barnes I cross motions for summary judgment)). Mr.
Barnes objects to this characterization and states that he asserted diversity jurisdiction
in his briefing on the parties’ cross motions for summary judgment in Barnes I. Id. Mr.
Barnes fails to identify an error in Judge Hegarty’s recommendation, given that the
recommendation accurately quotes the parties’ briefing on the cross motions for
summary judgment. See Docket No. 36 at 2–3. Judge Hegarty’s characterization of the
briefing as “muddy” is immaterial. Moreover, Mr. Barnes fails to identify any prejudice to
him from Judge Hegarty’s determination that the parties’ briefing discussed different
bases for the Court’s jurisdiction, given that Judge Hegarty found that Mr. Barnes did
assert diversity jurisdiction in both his complaint and in his briefing on the cross motions
for summary judgment. Id. at 9–10 (“I disagree with Defendant’s first claim, that Plaintiff
failed to assert diversity jurisdiction in Barnes I. As detailed above, in Barnes I, Plaintiff
pleaded diversity jurisdiction. Defendant admitted that diversity jurisdiction existed.
Factually, diversity jurisdiction did exist. Plaintiff repeated the assertion of diversity
jurisdiction in his Motion for Summary Judgment, and Defendant again admitted it in its
Response.”). Therefore, the Court overrules Mr. Barnes’s first objection.
2. 	Second Objection
Mr. Barnes objects to Judge Hegarty’s finding that “Plaintiff mentioned diversity
jurisdiction in the [motion for summary judgment’s] undisputed fact section, [Barnes I,
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Docket No. 43 at 2] (“Jurisdiction, diversity of citizenship, is not disputed.”), but
otherwise did not address it.” Docket No. 37 at 2 (quoting Docket No. 36 at 3). Mr.
Barnes states that his motion for summary judgment in Barnes I not only stated that
“[j]urisdiction, diversity of citizenship, is not disputed,” but also cited “Defendant
Omnicell’s answer to Plaintiff’s complaint, filed 8/11/21, p.2, section C.” Id. Mr.
Barnes’s objection addresses a portion of Judge Hegarty’s recommendation that was
not material to Judge Hegarty’s analysis. As discussed above, Judge Hegarty’s
recommendation accurately states that Mr. Barnes’s pleading and motion for summary
judgment asserts diversity jurisdiction. Docket No. 36 at 9. The recommendation also
rejects Omnicell’s argument that the Court should dismiss Mr. Barnes’s claims because
he failed to assert diversity jurisdiction, regardless of the further support Mr. Barnes
claims he provided. Id. As such, Mr. Barnes attempts to raise an issue of fact that is
immaterial, and the Court overrules his second objection. See Sanchez v. Guzman, No.
19-cv-01871-RMR-MEH, 2022 WL 4844462, at *9 (D. Colo. Aug. 30, 2022), aff’d, 105
F.4th 1285 (10th Cir. 2024) (“Plaintiffs’ attempts to raise disputes of fact are not material
to the Court’s determination that summary judgment is warranted, and these objections
are OVERRULED.”).
3. 	Third Objection
Judge Hegarty’s recommendation asserts that the scheduling order and the final
pretrial order in Barnes I state that the Court is exercising federal question jurisdiction
over Mr. Barnes’s FLSA claim and supplemental jurisdiction over his state law claims.
Docket No. 36 at 2–3. The recommendation states that, “[a]lthough defense counsel
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created the first drafts of both the Scheduling Order and Final Pretrial Order, defense
counsel consulted with Plaintiff on both.” Id. at 4. In a footnote, Judge Hegarty states
I find it was pure mistake by both Parties that diversity jurisdiction was not raised
in the Scheduling Order or the Final Pretrial Order in Barnes I. I am certain the
omission was inadvertent by Plaintiff, and I do not believe Defendant’s counsel
deliberately excluded reference to diversity jurisdiction. To believe otherwise
would raise serious ethical concerns which are not supported by the record
currently before me.
Id. at 10 n.3.
In his objection, Mr. Barnes alleges that there were “several misrepresentations
made by Defendant’s counsel” in Barnes I. Docket No. 37 at 2. Mr. Barnes’s objection
identifies multiple instances of defense counsel allegedly making misrepresentations to
the Court, which Mr. Barnes claims are “[g]athered from the record” of Barnes I. Id. at
2–9.
Mr. Barnes does not make a specific objection to Magistrate Judge Hegarty’s
recommendation based on these alleged misrepresentations. See id. Mr. Barnes
appears to be arguing that the alleged misrepresentations highlighted in the objection
support the inference that Omnicell intentionally failed to include diversity jurisdiction
while drafting the proposed scheduling and final pretrial orders. As such, Mr. Barnes
appears to assert that Judge Hegarty erred in concluding that the omission was
unintentional. Whether counsel for Omnicell intentionally failed to include diversity
jurisdiction in its proposed orders to the Court is immaterial to whether Mr. Barnes’s
claims are barred by the doctrines of claim preclusion and claim splitting, given that
Judge Hegarty found that Mr. Barnes did assert diversity jurisdiction. Docket No. 36 at
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9. Therefore, the Court will overrule Mr. Barnes’s third objection. Sanchez, 2022 WL
4844462, at *9 (courts may overrule objections that raise immaterial issues of fact). 2
4. 	Fourth Objection
The entirety of Mr. Barnes’s fourth objection is that the “first element of claim
preclusion, a final judgment on the merits, was not met for all of the reasons set forth
previously for number 3.” Docket No. 37 at 10. The Court construes Mr. Barnes’s
objection to argue that, because defense counsel made the misrepresentations Mr.
Barnes identifies in his third objection, the Court incorrectly granted summary judgment
for Omnicell, and that because the Court incorrectly granted summary judgment for
Omnicell, there has not been a final judgment in Barnes I that would preclude Mr.
Barnes’s claims. Mr. Barnes appears to object to Judge Hegarty’s finding that the first
element of claim preclusion is satisfied in this case by the final judgment issued in
Barnes I regarding Mr. Barnes’s FLSA claim. See Docket No. 36 at 7 (“First, a final
judgment was reached in Barnes I on the merits of Plaintiff’s FLSA claim.”). Mr. Barnes
provides no support for the proposition that a judgment is not final for purposes of claim
preclusion if that judgment was incorrect. Instead, “[a] final judgment is no less final
because it is wrong.” Johnson v. Spencer, 950 F.3d 680, 696 (10th Cir. 2020) (quoting
2 Mr. Barnes’s third objection states that the Court did not review certain evidence that
Mr. Barnes produced in the cross motions for summary judgment in Barnes I. Docket
No. 37 at 4. The Court declined to consider this evidence because it was not properly
before the Court. See Barnes I, Docket No. 68 at 8 (“the Court is under no obligation to
read through Mr. Barnes’ voluminous exhibits or to compare them to other documents to
ascertain their authenticity and applicability to Mr. Barnes’ motion for summary
judgment”). The Court’s order on the cross-summary judgment order has been affirmed
by the Tenth Circuit. Barnes, 2024 WL 2744761, at *7. Mr. Barnes cannot collaterally
attack the proceedings in Barnes I in this case. Mr. Barnes’s arguments do not address
Magistrate Judge Hegarty’s recommendation, and the Court will not consider any of Mr.
Barnes’s arguments regarding the Court’s evidentiary rulings in Barnes I.
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Aaron-Andrew P. Bruhl, Deciding When to Decide: How Appellate Procedure Distributes
the Costs of Legal Change, 96 Cornell L. Rev. 203, 211–12 (2011)); In re Greenstein,
576 B.R. 139, 159 (Bankr. C.D. Cal. 2017), aff’d, 589 B.R. 854 (C.D. Cal. 2018), aff’d,
788 F. App’x 497 (9th Cir. 2019) (“Claim preclusion bars a plaintiff from relitigating
claims adjudicated in a prior judgment, even if the prior decision was wrongly decided.”);
Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981) (“Nor are the res
judicata consequences of a final, unappealed judgment on the merits altered by the fact
that the judgment may have been wrong or rested on a legal principle subsequently
overruled in another case.”). Even if the Court incorrectly granted summary judgment
for Omnicell on Mr. Barnes’s FLSA claim, Judge Hegarty did not err in concluding that
the first element of claim preclusion is stratified for Mr. Barnes’s FLSA claim. Therefore,
the Court overrules Mr. Barnes’s fourth objection.
5. 	Fifth Objection
Mr. Barnes objects to Judge Hegarty’s conclusion that the doctrine of claim
splitting and claim preclusion bars his CWA claim. Docket No. 37 at 10. Mr. Barnes
argues that Judge Hegarty erred in concluding that the doctrine of claim splitting applies
to this case’s circumstances. Id. He asserts that the doctrine of claim splitting applies
when a plaintiff has filed separate cases based on the same causes of action in different
forums, whereas Mr. Barnes filed all his claims in a single lawsuit. Id.
Mr. Barnes relies on the Court’s order in Markley, 2024 WL 1281520, at *6. Id. at
11. In Markley, the plaintiff brought a state law claim of wrongful discharge against his
employer, U.S. Bank. Markley, 2024 WL 1281520, at *3. As in this case, plaintiff had
previously filed federal and state law claims against his employer in federal court and,
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like this case, the Court dismissed plaintiff’s federal claims on the merits with prejudice.
Id. However, the Court dismissed Mr. Markley’s state law claims without prejudice
because the Court declined to exercise supplemental jurisdiction over them. Id. Unlike
the facts of this case, even though there was diversity jurisdiction in the first case, Mr.
Markley failed to allege diversity jurisdiction. Id. When Mr. Markley refiled his state law
claims in state court and U.S. Bank removed those claims to federal court, U.S. Bank
argued that Mr. Markley was precluded from pursuing his state law claims “because of
the doctrines of claim splitting, claim preclusion, law of the case, and issue preclusion.”
Id. In addressing U.S. Bank’s claim splitting argument, the Court stated
US Bank further argues that Mr. Markley has impermissibly split his claims.
Docket No. 17 at 10. “The rule against claim-splitting requires a plaintiff to assert
all of its causes of action arising from a common set of facts in one lawsuit.”
[Katz, 655 F.3d at 1217]. “By spreading claims around in multiple lawsuits in
other courts or before other judges, parties waste ‘scarce judicial resources’ and
undermine ‘the efficient and comprehensive disposition of cases.’” Id. (quoting
Hartsel Springs Ranch of Colo., Inc. v. Bluegreen Corp., 296 F.3d 982, 985 (10th
Cir. 2002)). “It is well-settled that a plaintiff may not use the tactic of filing two
substantially identical complaints to expand the procedural rights he would have
otherwise enjoyed.” Hartsel Springs Ranch, 296 F.3d at 990. First, the Court
notes that US Bank misunderstands the appropriate procedural posture of a
claim splitting argument. A claim splitting argument applies when a plaintiff has
filed two claims in separate but related suits, neither of which has proceeded to a
final adjudication. Id. at 987 n.1 (“It is clear that a motion to dismiss based on
improper claim-splitting need not – indeed, often cannot – wait until the first suit
reaches final judgment.” (citing Calderon Rosado v. Gen. Elec. Circuit Breakers,
Inc., 805 F.2d 1085, 1087 (1st Cir.1986) (recognizing that, if two suits based on
the same claim are pending, but the defendant waits to file a motion to dismiss
until “after judgment enters on one of the two,” then “the motion should be
denied”))). Here, Mr. Markley did not improperly split his claims. Rather, he filed
both of his claims in a single action in federal court. Mr. Markley’s state law claim
ended up in state court, not through a tactical decision by Mr. Markley, but
because Judge Moore declined to exercise supplemental jurisdiction over Mr.
Markley’s state law claim. [Markley v. U.S. Bank Nat’l Ass’n, No. 19-cv-01130-
RM-NYW, 2021 WL 2184850, at *5 (D. Colo. May 28, 2021), aff’d, 59 F.4th 1072
(10th Cir. 2023)]. It was not improper for Mr. Markley to refile his claim in state
court, and US Bank’s removal of the case to federal court does not turn that
action into improper claim splitting.
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Id. at *5 (footnote omitted).
Omnicell responds to Mr. Barnes’ reliance on Markley by stating that, “[a]lthough
Plaintiff cites to Markley v. U.S. Bank, 2024 WL 1281520 (D. Colo. March 26, 2024), he
does not explain how this citation supports his argument or how it undermines
Recommendation II. This objection, to the extent it can be ascertained, does not
support reversing the dismissal of the Barnes II complaint.” Docket No. 38 at 5. The
Court disagrees. First, Mr. Barnes cites the specific portion of Judge Hegarty’s
recommendation that he objects to and clearly states the basis for his objection,
namely, that Judge Hegarty erred in concluding that the doctrine of claim splitting is
applicable to the circumstances of this case. Docket No. 37 at 10 (citing Docket No. 36
at 11–12); 2121 East 30th Street, 73 F.3d at 1059 (an objection must be specific
enough to enable the court “to focus attention on those issues – factual and legal – that
are at the heart of the parties’ dispute”). Second, the Court finds that its analysis in
Markley is applicable to this case.
In his recommendation, Judge Hegarty found that, when courts “assess whether
duplicative claims have been asserted, [courts] assume the finality of the first suit for the
purposes of the analysis.” Docket No. 36 at 12 (citing Katz, 655 F.3d at 1219). In Katz,
the Tenth Circuit explained that a plaintiff has “no right to maintain two actions on the
same subject in the same court, against the same defendant at the same time.” Katz,
655 F.3d at 1217 (quoting Curtis v. Citibank, N.A., 226 F.3d 133, 139 (2d Cir. 2000)).
The court noted that “more recent cases analyze claim-splitting as an aspect of res
judicata.” Id. (citing Hartsel, 296 F.3d at 986 (collecting cases)). However, while courts
“analyze claim splitting as an aspect of res judicata, the claim-splitting doctrine does not
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fall within a conventional res judicata analysis.” Id. at 1218. Instead, “a final judgment
is not a necessary component of the claim-splitting analysis” because “a motion to
dismiss based on improper claim-splitting need not – indeed, often cannot – wait until
the first suit reaches final judgment . . . . Thus, in the claim-splitting context, the
appropriate inquiry is whether, assuming that the first suit were already final, the second
suit could be precluded pursuant to claim preclusion.” Id. (quoting Hartsel, 296 F.3d at
987 n.1). Requiring a final judgment would collapse the claim splitting and claim
preclusion analysis and would defeat “the district court’s comprehensive management
of its docket” to further the “interests of promoting judicial economy and shielding parties
from vexatious concurrent or duplicative litigation.” Id.
As the Court explained in Markley, a “claim splitting argument applies when a
plaintiff has filed two claims in separate but related suits, neither of which has
proceeded to a final adjudication.” Markley, 2024 WL 1281520, at *5. Here, Mr. Barnes
did not improperly split his claims. Instead, he filed both claims in a single action in
federal court. See id. Moreover, no assumption of finality is required in this case. Final
judgment in Barnes I was entered on September 25, 2023, Barnes I, Docket No. 69,
and the Tenth Circuit affirmed the judgment on May 28, 2024. Barnes, 2024 WL
2744761, at *7. Because there was a final judgment in Barnes I, the Court finds that
Judge Hegarty erred in applying the doctrine of claim splitting to this case and in
assuming the finality of the judgment as to Mr. Barnes’s state law claims.
In Barnes I, the Court declined to exercise supplemental jurisdiction over Mr.
Barnes’s state law claim, and dismissed the claim without prejudice. See Barnes I,
Docket No. 68 at 25. “Generally, a dismissal without prejudice is a dismissal that does
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not operate as an adjudication upon the merits, and thus does not have a res judicata
effect.” Harris v. City Cycle Sales, Inc., 112 F.4th 1272, 1291 n.6 (10th Cir. 2024)
(quotation and alterations omitted) (quoting Santana v. City of Tulsa, 359 F.3d 1241,
1246 n.3 (10th Cir. 2004)). For the reasons discussed in Judge Hegarty’s
recommendation, because Mr. Barnes asserted diversity jurisdiction in Barnes I,
Omnicell cannot rely on the exception that would turn the dismissal without prejudice
into a final judgment on the merits of Mr. Barnes’s state law claim. Docket No. 36 at 9.
As such, the state law claim is not barred by the doctrine of claim preclusion because
the first element of claim preclusion is not satisfied. Markley, 2024 WL 1281520, at *5
(claim preclusion requires “(1) a final judgment on the merits in an earlier action; (2)
identity of parties or privies in the two suits; and (3) identity of the cause of action in
both suits”). Therefore, the Court will sustain Mr. Barnes’s objection and deny that
portion of Omnicell’s motion seeking to dismiss Mr. Barnes’s state law claim.
6. 	Sixth Objection
In Mr. Barnes’s sixth objection, he lists several objections that he made to Judge
Hegarty’s recommendation on the cross motions for summary judgment in Barnes I that
he claims the Court and the Tenth Circuit failed to properly consider. Docket No. 37 at
11–12. For the reasons discussed above, the Court will not consider Mr. Barnes’s
objections to the extent he seeks to relitigate issues finally decided in Barnes I.
Therefore, the Court overrules Mr. Barnes’s sixth objection.
IV. CONCLUSION
For the foregoing reasons, it is
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ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 36] is ACCEPTED in part and REJECTED in part. It is further
ORDERED that plaintiff’s Objection to Recommendation of United States
Magistrate Judge [Docket No. 37] is OVERRULED in part and SUSTAINED in part. It
is further
ORDERED that Defendant’s Motion for Judgment on the Pleadings [Docket No.
19] is GRANTED in part and DENIED in part.
DATED March 14, 2025.
BY THE COURT:
____________________________
PHILIP A. BRIMMER
Chief United States District Judge
___________________________
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